Chronicle calls federal case against BALCO reporters flawed

Published 12:49 pm, Wednesday, January 10, 2007

2007-01-10 13:49:14 PST SAN FRANCISCO -- The Chronicle told a federal appeals court today that contempt-of-court orders against two reporters for refusing to disclose sources of leaked testimony about athletes and steroids were based on a false premise -- that the leak was a serious crime requiring a grand jury investigation.

In a final round of written arguments to the Ninth U.S. Circuit Court of Appeals challenging prison sentences for the reporters and fines for the newspaper, lawyers for the parent Hearst Corp. disputed prosecutors' position that journalists never have the right to withhold evidence from a grand jury investigating a crime.

A 1972 Supreme Court ruling upholding contempt orders against reporters for refusing to disclose their sources to grand juries involved serious crimes, such as drug trafficking and plots of violence, that can be prosecuted only by grand jury indictments under the Constitution, said Jonathan Donnellan, a Hearst attorney.

By contrast, he said, the current case involves a violation of a secrecy order by U.S. District Judge Susan Illston that she could have investigated herself or referred to a special prosecutor.

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Either of those options would have allowed the reporters to claim the right to protect their sources, Donnellan said, and that right shouldn't be diminished by Illston's decision to refer the leak to the Justice Department, which chose to convene a grand jury.

"First Amendment rights cannot rise or fall on the District Court's discretionary choice as to where to steer an investigation," the lawyer wrote. "In cases involving violation of a protective order, at least, a rigid distinction between grand jury and other matters cannot stand."

The court has scheduled a hearing Feb. 12 on appeals by The Chronicle and reporters Mark Fainaru-Wada and Lance Williams, who were held in contempt last September by U.S. District Judge Jeffrey White for refusing to testify or provide documents to a grand jury investigating the leaked transcripts.

Five defendants, including BALCO founder Victor Conte, have pleaded guilty to illegal drug distribution. A separate grand jury is investigating whether Bonds lied by denying he knowingly used steroids.

After the August 2004 article on Montgomery's testimony, Illston, who had ordered all participants in the case to keep the transcripts confidential, told the Justice Department to investigate the leak. The department empaneled a grand jury, which issued subpoenas to the reporters and The Chronicle last May.

In upholding the subpoenas, White said the 1972 Supreme Court ruling established that journalists have no special right to withhold evidence from a grand jury. He said exceptions carved out by some post-1972 rulings -- requiring those who seek reporters' testimony to show that it is essential and unavailable elsewhere -- have not involved grand jury investigations.

Lawyers for the newspaper and the reporters contend a 1996 Supreme Court ruling, allowing psychotherapists to withhold their patients' confidential statements from grand juries, requires federal judges to recognize similar rights for journalists, along the lines of shield laws enacted by California and most other states.

Reporters should be allowed to protect their sources, the attorneys argue, if the value of the news coverage outweighs any harm caused by the disclosure.